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TMI Blog2025 (3) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... ence to any document that has been impressed. Also, they have contested that option of payment of penalty of 25% as the entire amount of tax, interest and penalty are paid within a period of one month was not provided to them. First I take up the contention of the appellant in respect of invocation of extended period. In this regard, I find that Section 68 of the Finance Act, 1994 read ith Rule 6 of the Service Tax Rules, 1994 directs the assesse to pay service tax on the value of taxable service received during the calendar quarter/month. Also, Section 70 of the Finance Act, 1994 imposes the duty on the appellant to provide information in respect of self assessed and pay service tax due on the services provided. However, in the present case from the impugned order it is apparent that the appellant had declared both the assessable value and service tax liable to be paid by them as 'NIL' which construes and gives an impression that though the appellant is registered with the department but, for the disputed period is not engaged in providing any taxable service and hence, no service tax liability arises on the part of the appellant. The claim of the appellant of maintenanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith Section 174 of the Central GST Act, 2017 for failure to pay Service Tax during the relevant period suppressing the facts from the department (iv) Penalty should not be imposed upon the party under Section 77 (1) (b) of the Finance Act, 1994 read with Section 174 of the CGST Act, 2017 in contravention of Rule 5 of the Service Tax Rules, 1994 in as much as the party has failed to maintain the prescribed records as discussed in the foregoing paras. (v) Penalty should not be separately imposed upon the party under Section 77 (1) (c) (ii) of the Finance Act, 1994 read with Section 174 of the CGST Act, 2017 in as much as the party has failed to provide the documents respectively as called for by the Excise Office as discussed in the foregoing paras. (vi) Penalty of Rs.50,000/- should not be demanded and recovered as per provisions of under Section 77 (2) of the Act (ibid) read with Section 174 of the CGST Act, 2017 in contravention of the provisions of Rule 7 of the Service Tax Rules, 1994." 2.4 This show cause notice was adjudicated as per Order-in-Original dated 13.04.2021 by holding as follows:- "ORDER (i) I confirm the service tax demand of Rs.3,37,081/- (inclusive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018 wherein following has been observed:- * 6. We find that the authorities below have included the fixed charges received by the appellant for providing the cold storage service, in the gross value of C&F Service and confirmed the Service Tax liability thereon. On perusal of the agreement entered into between the appellant and M/s HLL, we find that the service receiver M/s HLL cleared the goods from their factory through their own transporter and upon receipt of the goods in the godown, with the cold storage facility, the appellant's role started for handling those goods and forwarding the same to the destination/buyers, as per the instruction of the service receiver, M/s HLL. Thus, as per the scope of the contract, it is evident that the appellant had only provided the forwarding activities with regard to goods received from the service receiver M/s HLL. Since the appellant had not provided Clearing and Forwarding Services simultaneously, we are of view that the activities undertaken by the appellant, only for forwarding the goods, should not fall under the taxable category of C&F services. We find that Hon'ble Punjab & Haryana High Court in the case of Kulcip Medicines (P) Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court rendered in the case of Ape Belliss India Ltd v. Union of India (2001) 132 ELT 8. The observations of their Lordship reads thus: "6........ A plain reading of the Section (sic Tariff Public Notice) clearly shows, as contended by Mr. Bhatt, that for an alloy steel to be considered as stainless steel, it will have to satisfy two conditions i.e. The alloy steel should be known in the trade as stainless steel and further, it should contain 11% chromium as a component of the allow steel. This is clear from the use of the word "and". If the intention of the trade notice was to treat the two types of alloy steels as stainless steel, then it would have been made clear by using the word "of" instead of the word "and"." * As the services rendered by the appellant were for cold storage of the eatable products--> exempted service and there is a commission agent for the sale of the goods by taking the turnover of the taxable service. He was under a bonafide belief, in view of above judgment no service tax was payable. Accordingly, we would not paid any service tax on the services provided. * Revenue authorities have sought to club receipt against both the services to make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification No.33 of 2012 dated 20 June, 2012 in relation to eatable products. 4.4 I find that there is sufficient ground for the appellant to enter into a belief that no service tax was payable by them. It is also supported by the decision to belief is well founded on the basis of the decision of this Tribunal in the case of M/s Kwality Ice Cream Company (supra). I also find that the Tribunal in the case of M/s Hari Har Engineering Ltd. (supra) has held as follows:- "We have noted that the learned Commissioner (Appeals) has held that extended period of limitation was applicable in the present case on the ground that appellant was required to do self assessment and they have failed in the same. After hearing both the sides, we note that the appellant was having a bonafide belief that since he was providing services to Indian Railways which is part of Government of India, the services are not liable to be charged under the levy of service tax particularly in terms of Sl. No.12 of Mega Notification No.25 of 2012-ST dated 20.06.2012. Therefore, we hold that extended period of limitation was not available to revenue for raising the present demand. Since the extended period of limitat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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